National Car Rental System, Inc.

NATIONAL CAR RENTAL SYSTEM, INC National Car Rental System, Inc. and Local Union 723, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 22-CA-8296 September 16, 1980 DECISION AND ORDER On October 26, 1979, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith and to modify his remedy. Respondent operates a number of facilities throughout the United States from which it leases and rents cars or trucks. The present dispute in- volves such a facility for trucks which Respondent operated in Newark, New Jersey.3 The Union had represented a unit of mechanics and garagemen employed by Respondent at this site for over 10 years and had negotiated a succession of bargaining agreements during this period. However, on or about February 26, 1978, Respondent ceased oper- ations at this site, assigned certain of its lease ac- counts, and moved the remainder of its operations to a new facility located approximately 20 miles distant in Edison, New Jersey. For reasons stated below, we find that Respondent violated Section 8(a)(1) and (5) of the Act by not bargaining over the effects of these decisions and that it violated Section 8(a)(1) and (3) of the Act by its failure to consider transferring any of its Newark employees to the Edison location. However, we dismiss those allegations that Re- spondent violated Section 8(a)(l) and (5) by not bargaining over the decisions to open Edison and to sell and close the Newark facility. Prior to closing, Respondent had found the Newark site less than satisfactory. The entrance to the garage was too small and required the larger i Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings I Respondent also operates two other facilities in the Newark area for the lease and rental of cars These facilities are not the subject of the present proceeding 252 NLRB No. 27 trucks' air deflectors to be dismantled in order to allow their entry into the garage. In addition, the fuel pumps were inconveniently located. Beginning in 1975, Respondent began looking for either a re- placement or a satellite facility. In April 1977, the Edison site was located. In June 1977, Respond- ent's Newark manager, Manning, developed a pro- posal for locating a satellite facility in Edison and presented it to a committee, including General Manager Lavery. At this time the Newark facility serviced approximately 53 rental and 77 lease trucks. Manning's proposal recommended that, by means of acquisition and transfer of vehicles, Newark's supply of rental vehicles be slightly de- creased from 53 to 45 and that Edison commence operations with 37 such vehicles. Manning further recommended that 10 lease trucks from 4 lease ac- counts 4 be transferred along with these accounts from Newark to Edison, and that several unit and nonunit employees also be transferred. Although the proposal was accepted in all other respects, Lavery rejected Manning's proposal that the unit employees be transferred, stating that he had it straight from Respondent's president that there would not be a union at Edison. After the meeting, Manning told Region Service Manager Rozich that Edison would be nonunion, and Rozich passed this information on to employees Beard and Bonilla. Respondent initially intended that the Edison fa- cility begin operations in the summer of 1977. However, the lease for the property was not signed until the end of August, and zoning problems caused occupancy to be postponed until the follow- ing February. In November, in order to prepare Edison as a satellite to Newark, Respondent placed orders for tools and equipment for the Edison fa- cility. Although Respondent continued to be inter- ested in an alternate site for the main Newark loca- tion at this time, it also planned for capital im- provements at the existing Newark site; specifically the installation of new fuel tanks and a service island. In November 1977, Jack Kirk, a representative from Truck Lease Incorporated, inquired about the purchase of some of Respondent's Newark lease accounts. Subsequent to Kirk's inquiry, Lavery re- viewed Respondent's October financial statement which showed a continuation in a pattern of losses at Newark, s and directed that negotiations contin- ue regarding Kirk's inquiry. Pending these negotia- tions with Kirk, Respondent postponed the capital ' At this time Respondent serviced approximately 20-25 accounts at its Newark facility ' Despite these losses, Respondent had never considered terminating its New Jersey truck rental and leasing operation, as it wished to retain a position" in New Jersey as part of its national operations 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improvements planned for the Newark location. Respondent's position in these negotiations was that it wished to divest itself of all accounts that it did not plan to transfer to Edison. As Kirk's final offer was more limited, no agreement was reached. Kirk's inquiry, however, was followed by two others, including one on January 12, 1978, by John Manning, on behalf of Champion Truck Rentals, Inc., who by that time had ceased working for Re- spondent. Manning offered to buy all of Respond- ent's remaining Newark accounts, as well as the ap- plicable lease trucks. By the end of January or the beginning of February Respondent considered that it had a "solid deal" for selling the Newark ac- counts and the related trucks either to Manning or to another bidder. The negotiations with Manning proved successful, and his written sales agreement proffered on February 17 was signed by Respond- ent a few days later. Under this agreement, 22 lease accounts and 41 lease trucks were to be sold to Champion, 6 who would also sublease Respondent's Newark facility. In addition, Champion agreed to pay $10,000 for the goodwill represented by these truck leases. Prior to the execution of this written agreement, however, it appears that Respondent had reached oral agreement with Champion, because on Febru- ary 16, prior to the proffer of the written proposal, Respondent mailed letters to its truck lessees, whose accounts were being assigned, informing them that Champion was to take over their ac- counts on February 26 and that their vehicles would be serviced by Champion at the Newark lo- cation. 7 During this entire period, Respondent failed to keep the Union apprised of its plans with respect to the Newark and Edison facilities. At no time was the Union informed that Respondent was negotiat- ing for the sale of certain of its accounts. Respond- ent even made some attempt at preventing employ- ees from learning the details of its plans for the Newark facility. Respondent's director of trucking operations, Davis, visited the Newark facility in December 1977 and informed Newark Service Manager Fecher that Respondent was going to close the Newark location and open a nonunion shop in Edison, but that he was not to mention anything to the mechanics. Nevertheless the employees at Newark and the Union became aware that something was about to occur at the Newark facility. During a Christmas 6 Initially, two of the accounts for approximately eight trucks refused to allow the servicing of their trucks to be assigned to Champion, but they subsequently agreed to the assignment. I On February 16 Respondent also addressed letters to its customrs whose accounts were to be retained, notifying them that Respondent was relocating in Edison. party later in December, Fecher disregarded Davis' instructions to remain silent and revealed to several employees that Respondent was going to move and do away with the Union. About this time, Respondent's new city manager, Monusky, also told Union President Zingone that Respondent was contemplating a move, possibly to Edison, but he did not say what its effect on the Newark em- ployees would be. Zingone, who earlier had heard from employees rumors that such a move might occur, did not inquire further into the matter. During negotiations between Champion and Re- spondent, Manning indicated that he was interested in hiring some of Respondent's mechanics." Man- ning spoke to some of the mechanics, and offered a few of them jobs with Champion. After Manning made one such offer to employee Beard in Febru- ary, Beard inquired of Newark Manager Monusky what his situation was with Respondent. Monusky replied that he did not have to worry about his job, that he had his job with Respondent. On at least two occasions in mid-February, Manning visited Respondent's Newark facility and solicited employ- ees for Champion. After Monusky complained to the person responsible for negotiating the transac- tion with Manning, Monusky was instructed to tell Manning to cease his solicitation as the agreement had not yet been finalized. Manning, however, countered that Champion was about to make its offer. A few days later Respondent received the written offer. During the period of negotiations with Champi- on, Respondent began to take applications for openings at Edison.9 Interviews for these positions took place at Newark in late February, and two mechanics and one garageman were hired. After the agreement was executed, Respondent began to implement the changes necessary for the move to Edison and the assignment of the accounts to Champion. On or about February 22, Respond- ent's operations manager, Davis, informed Mon- usky that he and three other nonunit employees as- signed to Newark were being transferred to Edison, but that all other persons were to be termi- nated.' ° The next day, Monusky called the unit ga- ragemen and mechanics into his office and gave them letters advising them that they were being laid off on February 25. When Monusky told them I Respondent has not supported its contention that Champion desired to hire all of Respondent's mechanics and garagemen. 9 Respondent provided the General Counsel with a list of job appli- cants for openings at Edison which indicated that applications were sub- mitted between January 26 and February 25, 1978. For reasons unex- plained in the record, this list did not include any of the employees who were actually hired for the openings at the Edison facility. '" The effect of this instruction was that all unit employees were to be terminated, as well as three unrepresented employees. 160 NATIONAL CAR RENTAL SYSTEM, INC. that Respondent was relocating at Edison, some of them inquired about being transferred there. Mon- usky replied that there was nothing he could do for them and that it was out of his hands. After Monusky was told to notify the employees of their termination, Respondent's labor relations manager, Sanville, called Union President Zingone and told him that the Newark employees were being terminated and that Respondent was relocat- ing in Edison. Zingone replied that he wanted to check on the legality of the situation. The next day Zingone called Sanville, told him that Respond- ent's actions were illegal, and that he would file unfair labor practice charges against Respondent. Thereafter, Zingone went to the Newark facility and ascertained that the unit employees had been notified of their termination. When Zingone pro- tested the terminations, Monusky replied that it was out of his hands and that Zingone had no con- trol over the situation. During the following weekend, Respondent transferred all of its equipment from Newark to the Edison facility. 1 On February 26, Champion began operations at the Newark site, and Respond- ent opened its Edison facility. At the time of the relocation, Respondent had an inventory of 88 lease and rental trucks in Newark. 12 Of this number, 33 lease trucks under 19 accounts were immediately assigned to Champi- on, and an additional account for 6 trucks was re- tained by Respondent but serviced by Champion for Respondent in Newark under a subcontract. Servicing of the vehicles in the remaining accounts was transferred at that time to the Edison facility, as were the rental trucks.' 3 During the next sever- al months, five additional accounts serviced by Re- spondent at Newark and then at Edison were as- signed to Champion. 14 These additional assign- ments were for accounts involving 28 lease trucks. By the end of July 1978, Respondent retained at Edison only four Newark accounts for nine lease trucks, as well as the transferred rental trucks. In his Decision the Administrative Law Judge dismissed the allegations that Respondent violated Section 8(a)(l) and (5) of the Act by its sale and assignment to Champion, relocation to Edison, and " Almost all of the previously ordered equipment for the Edison fa- cility was warehoused and eventually delivered to other locations. 12 The record is silent as to how or why Respondent's inventory of lease and rental trucks was reduced from approximately 130 in June 1977. to 88 in February 1978. Almost all of the vehicles deleted from the fleet at Newark were rental trucks. 13 Four accounts for five lease trucks from Newark were terminated in January and February 1978, and continued to be carried on Respondent's books at Newark. The record does not indicate what happened to these five trucks. '' Included among these five accounts were two accounts for eight trucks which were originally included in the sales agreement between Respondent and Champion See fn. 6, supra. termination of all unit employees without providing notice to the Union or an opportunity to bargain with Respondent over these decisions and their ef- fects upon represented employees. Relying on Gen- eral Motors Corporation, GMC Truck & Coach Divi- sion, 5 he found that the sale of the truck and lease accounts as well as the sublease of the Newark fa- cility to Champion involved a "significant invest- ment or withdrawal of capital" as to "affect the scope and ultimate direction of the enterprise," and was essentially financial and managerial in nature. Consequently he found that Respondent had no duty to bargain over this decision. With respect to Respondent's duty to bargain over the decision to close the Newark facility and open the one at Edison, the Administrative Law Judge found that the Union waived its right to any such bargaining, even assuming that such existed. The Administra- tive Law Judge reasoned that by late December the union president had become aware of rumors of a move and that Respondent's Newark manager had advised him that Respondent was contemplat- ing such a move to Edison. Given such notice, he found the Union had an obligation to request bar- gaining at that time, and by failing to do so waived its right to bargain over the decision to move. Moreover, because Respondent notified the Union on February 22 of its decision to relocate and ter- minate the unit employees, he found that this notifi- cation as well as the notification in December pro- vided the Union with sufficient opportunity to bar- gain over the effects of these decisions, and that the Union's failure to request such bargaining simi- larly resulted in the waiver of its right thereto. Nevertheless, the Administrative Law Judge did find that Respondent violated Section 8(a)( ) and (3) of the Act by its systematic exclusion of the Newark unit employees from consideration for em- ployment at Edison. In support of this conclusion, the Administrative Law Judge observed that during the initial plans for the opening of Edison Respondent expressed its animus by stating that Edison would be nonunion. Furthermore, he ob- served that the record showed that Respondent was aware that Newark would be closing even before it hired employees for Edison, but that at no time did it ever ask any of the Newark employees if they wished to transfer to Edison. In its exceptions, the General Counsel contends that Respondent had an obligation to bargain over its decision to terminate and relocate a portion of its business and the effects thereof, regardless of '5 !91 NLRH 951 (1971), enfd. sub nom. International Union, United Automobile. Aerospace and Agricultural Implement Workers of Amer- ica, UAW and its Local 64, UAW v. NL.R.R., 470 F.2d 422 (D.C Cir 1972) 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the existence of economic or other business consid- erations. The General Counsel claims that the Board has restricted the application of General Motors, supra, to instances where an employer de- cides to eliminate itself as an employer from a par- ticular business, citing Summit Tooling Company, and Ace Tool Engineering Co., Inc., 195 NLRB 479 (1972). The General Counsel further contests the conclusion that the Union waived its right to bar- gain over these decisions and their effects. In this regard, it notes that the Union first received notice of the changes on February 22,'6 after the matter had become a fail accompli, and that the Union promptly contested the legality of the changes. Moreover, Respondent precluded further bargain- ing by informing the Union that the latter had no control over the situation and that the employees were being terminated. Finally, the General Coun- sel contends that the Administrative Law Judge's remedy is too limited in that he failed to find that Respondent should be required to recognize and bargain with the Union at the Edison facility. Respondent claims that it has not violated Sec- tion 8(a)(1) and (3) of the Act as described above. It asserts that it had no duty to hire Newark em- ployees at Edison,1 7 and that the competent evi- dence does not show that any of the employees or the Union on their behalf ever requested employ- ment at Edison.'8 In answer to the General Coun- sel's exceptions, Respondent reasserts the argument made by it to the Administrative Law Judge that the Union contractually waived its right to bargain over the matters discussed above. This contractual provision in effect at all material times herein, which was relied on by Respondent, states in perti- nent part: [T]he Employer and the Union, for the life of this agreement each voluntarily and unquali- fiedly waives the right, and each agrees that the other shall not be obligated to bargain col- lectively with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subject or matter may not have been within the knowl- edge or contemplation of either or both of the parties at the time that they negotiated or signed this Agreement. :6 The General Counsel asserts that the December notice from Mon- usky to the Union regarding a contemplated move to Edison was inad- equate due to the fact that at the time no mention was made of the future of the Newark facility or the Newark employees. 17 Respondent bases this claim on the fact that the current bargaining agreement recognized the Union only for employees at the specific Newark facility I$ Respondent claims that only incompetent hearsay testimony was re- ceived regarding employees' requests for transfer to Edison. Respondent bases this claim on the fact that only persons who heard the requests, and not those who themselves made such requests, testified at the hearing For the reasons stated below, we agree with the Administrative Law Judge's conclusion that Re- spondent has not violated Section 8(a)(1) and (5) of the Act by refusing to notify the Union and bar- gain over the decision to open the facility at Edison, sell the majority of its lease accounts to Champion, and terminate operations at the Newark facility. We also agree with his conclusion that Re- spondent violated Section 8(a)(1) and (3) of the Act by its systematic exclusion of the unit employees in Newark from consideration for employment at Edison. However, we disagree with his finding that the Union waived its right to bargain over the ef- fects of the decisions indicated above. Accordingly, we find that Respondent also violated Section 8(a)(1) and (5) of the Act by its failure to notify the Union in a timely fashion and provide it with an opportunity to bargain over the effects of the above decisions. At the time Respondent initially planned to open the facility in Edison, that facility was intended to operate as a satellite of the Newark operation. While the General Counsel correctly notes that some lease accounts were to be transferred from Newark to Edison, it appears that according to the proposal Newark's inventory of lease and rental vehicles would be only slightly reduced, from 130 to 112 vehicles. Accordingly, it is far from certain that such a reduction would have entailed the elimination of unit positions at Newark. In addi- tion, due to the significant time period between the initial acceptance of the proposal in June 1977 to open the facility at Edison and its actual com- mencement in February 1978, it is speculative that the opening at Edison alone would have had any adverse impact on the Newark employees. Accord- ingly, the record does not support the General Counsel's argument that Respondent violated Sec- tion 8(a)(l) and (5) of the Act by not notifying and bargaining with the Union regarding the decision to open the satellite facility at Edison. We further find that the Administrative Law Judge correctly relied on General Motors, supra, in concluding that Respondent did not violate Section 8(a)(l) and (5) of the Act by its failure to bargain with the Union regarding the decision to sell the bulk of its accounts to Champion and cease oper- ations at Newark.'9 The General Counsel does not contest that Respondent's motive for its agreement with Champion was based solely on economic con- siderations, and was in response to inquiries from third parties. The agreement with Champion result- 19 Chairman Fanning does not agree with this finding. See his dissent- ing opinion in General Motors Corporation, uprao. Moreover, he does not consider the General Motors decision controlling in the situation present- ed here. 162 NATIONAL CAR RENTAL SYSTEM, INC. ed in the liquidation of Respondent's operation in Newark, the sale of over 40 trucks, 20 approximate- ly half of its inventory of trucks, and a sublease of the Newark site. Accordingly, we agree that the decision to sell the accounts to Champion and to turn over its Newark facility was a decision "essen- tially financial and managerial in nature," involving a "significant investment or withdrawal of capital" affecting the "scope and ultimate direction of an enterprise," as stated in General Motors, and there: fore did not require advance bargaining regarding the decision. While we have found that Respondent lawfully made the decision to open a satellite facility at Edison, and that Respondent's subsequent agree- ment to sell and sublease the bulk of its operation at Newark was also lawful, the combined effect of these two decisions was to have a pronounced impact on the represented employees at Newark. The Edison facility was to receive all of the re- maining accounts and trucks from Newark upon its closing, and Edison's operations were no longer to be that of a satellite to the Newark facility. As a result, the jobs of unit employees at Newark were to be eliminated. 21 However, during negotiations with Champion, Respondent failed to inform the Union or the employees that the jobs of the unit employees were in jeopardy. On the contrary, the evidence shows that the Newark manager misled one of the unit employees by telling him that his job was secure. The first the Union or the employ- ees heard of the closing of the Newark facility was on February 22, simultaneously with the notifica- tion that the entire unit was being terminated. We disagree with the Administrative Law Judge's con- clusion that the Union's failure specifically to re- quest effects bargaining at this time resulted in the Union waiving this right. On the contrary, the Union immediately contested the propriety of the Respondent's precipitous announcement that all unit employees were being terminated, but was told that it had no control in the situation. Had Re- spondent not announced the closing and termina- tions as a fait accompli, it is clear the Union could have offered various proposals, such as transferring the unit employees to Edison. Respondent's an- nouncement, however, precluded such a request and clearly indicated that any attempt at bargaining would have been futile. Cf. Walter Pape, Inc., 205 NLRB 719 (1973). Accordingly, we find that the 20 While some of these trucks were not immediately transferred to Champion due to the initial refusal of some accounts to allow such as- signment, Respondent was eventually successful in securing such approv- al See fn 13. supra 21 Indeed, according to a provision in the agreement with Champion, Respondent was obligated to "terminate or reassign all of its employees at the Newark facility effective the time of closing" Union did not waive its right to effects bargaining, and that Respondent violated Section 8(a)(l) and (5) of the Act by depriving it of the opportunity to do so.2 2 Finally, we agree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(l) and (3) of the Act by systematically refusing to consider Newark employees for positions at Edison. The record contains repeated instances demonstrating that Respondent sought to prevent the Union from representing Edison employees, and that it specifically refused to consider transfer- ring its unionized Newark employees to that site when it was first planned. 2:' In order to fulfill this aim, it subsequently failed to inform Newark em- ployees that there were openings at Edison, even after it became clear that the Newark facility was to be closed. Several employees, however, upon being informed that they were about to be termi- nated, promptly inquired about transfers to Edison. 24 Newark Manager Monusky, however, rejected these inquiries, and stated that his hands were tied. For those reasons, we agree with the Administrative Law Judge that Respondent discri- minatorily refused to consider transferring Newark employees to the Edison facility. AMENDED CONCLUSIONS OF LAW In view of the above, the Administrative Law Judge's Conclusions of Law are amended to delete Conclusion of Law 4 and to add the following: "4. By failing and refusing to bargain in good faith with Local Union 723 concerning the effects of its decision to sell part of its business to Champi- on Truck Rental, Inc., and to transfer the remain- der to Edison, New Jersey, Respondent has en- 22 We reject Respondent's argument that the contract's zipper clause. quoted above, acted as a waiver of the Union's right to bargain over the effects of Respondent's decisions discussed herein This general zipper clause does not amount to a "clear specific and unmistakable waiver" by the Union of the right to be consulted regarding the effects of the elimi- nation of all unit positions See Pep.i-Cola Distributing Company of Knox- ville. Tennessee, Inc., 241 NLRB 869 (1979). In this regard, we note that the applicable bargaining agreement also provided that This Agreement shall be binding upon the parties hereto, their suc- cessors, administrators, executors and assigns In the event the entire business is sold, leased, transferred or taken over by sale, transfer, lease assignment, receivership or bankruptcy proceedings. such busi- ness shall continue to he subject to the terms and conditions of this Agreement for the life thereof While no party has made this contention. it is arguable that the transfer of the remaining operation to Edison was in the nature of the "transfer" provided for above and therefore was explicitly provided for within the terms of the bargaining agreement 23 The transfer (of Respondents uionized Newark employees was the only part of Manning's June 1977 proposal which Respondent rejected at that time. 24 We find no merit in Respondent's contention that persons who heard such inquiries, including City Manager Monusky, could not pro- vide competent testimony that such inquiries were nlade See 5 Wigmore, Evsidnce Sec 1361 (Chadhourn Res 1974) 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act." "5. Respondent has not otherwise violated Sec- tion 8(a)(1) and (5) of the Act." AMENDED REMEDY As a result of Respondent's unlawful failure to bargain about the effects of its closure of the Newark facility as a result of the sale to Champion and relocation to the Edison facility, unit employ- ees have been denied an opportunity to bargain through their collective-bargaining representative at a time when Respondent was still in need of their services and a measure of balanced bargaining powers existed. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require Re- spondent to bargain with the Union concerning the effects of its closure of the Newark facility as a result of the sale to Champion and relocation to Edison, and we shall accompany our order with a limited backpay requirement designed both to make whole the employees for losses, if any, suffered as a result of the violation and to recreate in some prac- ticable manner a situation in which the Union's bargaining position is not entirely devoid of eco- nomic consequences for Respondent. We shall do so in this case by requiring Respondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corporation and its Subsidiary, International Terminals, Inc., 170 NLRB 389 (1968).25 Accordingly, we shall order Respondent to bar- gain with Local Union 723, upon request, about the effects on its employees of the closing of the Newark facility, and to pay these employees amounts at the rate of their normal wages when last in Respondent's employ from 5 days after the date of this Decision until the occurrence of the earliest of the following conditions: (1) The date Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the sale and closing of the Newark facility and the re- location to Edison; (2) a bona fide impasse in bar- gaining; (3) the failure of Local Union 723 to re- quest bargaining within 5 days of this Decision, or to commence negotiations within 5 days of Re- 2n Despite his dissent in liansmarne, Member Jenkins notes that the remedy there has been accepted by the courts and the oard and. since some type of remedy for the misconduct is needed, he is therefore willing to join in the Decision here Uncle John' PancaAe Ilouse, 232 N R 438. fn 7 (1977). spondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of Local Union 723 to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from the time Respondent terminated its Newark facility to the time each secured equivalent employment else- where, or the date on which Respondent shall have offered to bargain, whichever occurs first; pro- vided, however, in no event shall this sum be less than such employees would have earned for a 2- week period at the rate of their normal wages when last in Respondent's employ. We adopt the Administrative Law Judge's remedy that Respondent be required to offer the unit employees jobs with backpay at the Edison fa- cility which they would have been offered absent the discrimination against them. We also find merit in the General Counsel's request that it be explicit- ly stated that Respondent must dismiss, if neces- sary, any persons hired to replace these employees as a result of such discrimination. We further find merit in the General Counsel's request that Respondent be required to recognize and bargain with the Union on behalf of the ga- ragemen and mechanics employed at the Edison fa- cility. At the time of the opening of the Edison fa- cility, the entirety of its business had been trans- ferred from the Newark facility, and to that extent it represented a continuation of that operation. While no employees from Newark actually trans- ferred to Edison at that time, this result stems di- rectly from Respondent's systematic discrimination against the Newark employees. Although the record does not indicate the number of employees who would have been willing to transfer, it does show that several of the 13 unit employees from Newark attempted to do so upon notification of their termination, and that others who testified also indicated their desire to accept employment at Edison. As the record indicates that Respondent opened the Edison facility with a staff of three ga- ragemen and mechanics, a fair inference to be drawn from these facts is that, absent Respondent's discrimination, the Union would have retained its majority among Respondent's employees after the transfer to the Edison facility. Fraser & Johnston Company, 189 NLRB 142 (1971). Accordingly, we shall order Respondent to recognize and bargain with the Union on behalf of the garagemen and mechanics employed at the Edison facility with re- spect to rates of pay, wages, and other terms and conditions of employment. 2 6 "' Our dissenting colleagues considers a bargaining order unwarranted However. we are not persuaded by his arguments or the cases he relies Continued 164 NATIONAL CAR RENTAL SYSTEM. INC As Respondent has discharged all of the unit em- ployees at the Newark facility and has ceased oper- ations there, the posting of the required notice at the Edison facility alone would not be sufficient to reach the former Newark employees who have been discriminated against. We shall, therefore, order Respondent to mail a copy of the attached notice to each employee who was employed by Respondent and represented by the Union at the time that Respondent closed its Newark facility, at his or her last known address, as disclosed by Re- spondent's records, or as may be amplified by the Union. Fraser & Johnston, supra. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, National Car Rental System, Inc., Edison, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Local Union 723, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, concerning the effects of its decision to sell part of its business to Champion Truck Rental, Inc., and to transfer the remainder of its business to Edison, New Jersey. (b) Refusing to consider its former employees at its Newark, New Jersey, facility for employment at its Edison, New Jersey, facility because of their prior representation by Local Union 723. (c) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local Union 723 concerning the effects on employees represented by the Union at Newark, New Jersey, of its decision to sell part of its business to Champi- on Truck Rental, Inc., and to transfer the remain- der to Edison, New Jersey. on. We think the facts of this case and the decision in Fruser d Johnston, supra, clearly support a bargaining order. Here Respondent had expressly stated that the Edison facility would be nonunion, although it had decid- ed to transfer nonunit employees from Newark to Edison Further. it sub- sequently concealed the decision to transfer operations from Newark to Edison, and rejected inquiries for transfers as soon as unit employees were notified of the Newark closing. Any ambiguity with respect to which and precisely how many of the 13 unit employees would have been rehired for the 4 Edison openings. a matter properly reserved for compliance proceedings, should not serve to relieve Respondent of its ongoing bargaining obligations with respect to unit employees. A fair in- ference in these circumstances is that the Union would have retained its majority status absent Respondent's wrongdoing A contrary result wul provide Respondent with an impermissible windfall. (b) Recognize and, upon request, bargain collec- tively with Local Union 723, as the exclusive bar- gaining representative of its garagemen and me- chanics at the Edison, New Jersey, facility and embody in a signed agreement any understanding reached. (c) Make Clifton Beard, Jesus Bonilla, Robert Carter, Otis Joyner, Hollowell McLeod, Edward Matthews, Stanley Mayo, Vincent Mills, Joseph Prophete, Jesus Rivera, Henry Robinson, Robert Watson, and Richard Wojciechowski whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the section of the Ad- ministrative Law Judge's Decision entitled "The Remedy." (d) Provide such additional amounts of backpay to the above-named employees in order to remedy Respondent's failure and refusal to provide an op- portunity for effects bargaining in the manner and to the extent set forth in the section of this Deci- sion entitled "Amended Remedy." (e) Offer the above-named employees immediate employment, subject to the conditions and limita- tions set forth in the section of this Decision enti- tled "Amended Remedy" and in the section of the Administrative Law Judge's Decision entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Edison, New Jersey, facility copies of the attached notice marked "Appendix."2 7 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. In addi- tion, Respondent shall mail one signed copy of the attached notice marked "Appendix" to each unit employee employed at Respondent's former 27 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by )rder of I'he National Labor Relations Board" shall read "Posted Pursu- alllnt to a Judgmerlt of the United States Court of Appeals Enforcing an Order of' Ihe Natiional I.abor Relations Board" 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newark, New Jersey, facility at the time of its closing. (h) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges vio- lations of the Act not specifically found herein. MEMBER PENELLO, dissenting in part: I dissent from my colleagues' opinion insofar as it reverses the well-reasoned Decision of the Ad- ministrative Law Judge which I would adopt in its entirety. Thus, unlike my colleagues, I would find, for the reasons stated by the Administrative Law Judge, that the Union waived its right to bargain over the effects of Respondent's decisions to close the Newark, New Jersey, terminal and more a por- tion of its work to Edison, New Jersey. With regard to the remedial issues raised herein, I would essentially adopt the Administrative Law Judge's recommended Order.2 8 Under my view of the case, the record does not provide a sufficient basis for the order issued by my colleagues requir- ing Respondent to bargain with the union as the representative of the Edison employees. Thus, the Administrative Law Judge provided the proper remedy for the unfair labor practice that Respond- ent committed of refusing to consider its Newark terminal employees for employment at its Edison terminal because of their representation by the Union. It must be remebered that a finding that Re- spondent unlawfully refused to consider unit mem- bers for employment is not the legal equivalent of a finding that Respondent unlawfully refused to hire unit members, and the remedies are not the same. 2 9 Here, Respondent's obligation to offer employment to unit employees is subject to the condition that they would have been hired "absent the discrimina- tion against them." Whether unit employees would, in fact, have been employed at the Edison terminal absent Respondent's unlawful refusal to consider them is a matter that it left for determination at the compliance stage of this proceeding.as It is entirely possible that for lawful business reasons unit em- ployees would not in any event have been em- ployed at Edison. Accordingly, unlike colleages, I cannot conclude on this record that the inference is 2 I agree with my colleagues that, in view of the closing of the Newark facility, it is appropriate to order Respondent to mail a copy of the notice to unit employees. 29 See Pierce Governor Company. Division of Avis Industrial Corporation, 243 NLRB 1009 (1979); Shawnee Industries. Inc.. subsidiary of 7hiokol Chemical Corporation. 140 NLRB 1451 (1963), enforcement denied on other grounds 333 F.2d 221 (lOth Cir. 1964). See also The Norwalk Hooni- trat 245 NLRB No. 57 (1979). 30 Pierce Governor. supra, 243 NLRB 1009. warranted that, "absent Respondent's discrimina- tion, the Union would have retained its majority among Respondent's employees after the transfer to the Edison facility." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to consider our former Newark, New Jersey, truck leasing terminal employees for employment at our Edison ter- minal because they were formerly represented by Local Union 723, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to re- frain from engaging in any or all the activities specified in Section 7 of the Act. These activi- ties include the right to self-organization; to form, join, or assist labor organizations; to bar- gain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion. WE WILL bargain in good faith with the above-named Union concerning the effects on employees represented by that Union of our decision to sell part of our business and to transfer the remainder from Newark to Edison, New Jersey. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of our mechanics and garagemen at the relocated facility in Edison, New Jersey, and embody in a signed agreement any understanding reached. WE WILL offer Clifton Beard, Jesus Bonilla, Robert Carter, Otis Joyner, Hollowell McLeod, Edward Matthews, Stanley Mayo, Vincent Mills, Joseph Prophete, Jesus Rivera, Henry Robinson, Robert Watson, and Richard Wojciechowski employment in the same jobs for which we would have hired them if there had been no discrimination against them, or, if 166 NATIONAL CAR RENTAL SYSTEM, INC. those jobs no longer exist, in substantially equivalent jobs. In the event that a sufficient number of jobs have not become available since the Edison terminal opened, WE WILL place their names on a preferential hiring list and offer them the first jobs that become avail- able for which they would have been hired if there had been no discrimination against them. WE WILL also make them whole with interest for any loss of earnings they may have suf- fered as a result of the discrimination against them, and provide them with such additional amounts for a period required by a Decision and Order of the National Labor Relations Board. NATIONAI CAR RENTAL SYSTEM, INC. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed on March 20, 1978, by Local Union 723, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union. The com- plaint issued on May 26, 1978, alleging that Respondent sold a substantial portion of its business at its Newark, New Jersey, truck rental facility, transferred the remain- der to a new location, and terminated all its employees without notice to the Union or an opportunity to bargain with Respondent over its decisions and their effects upon employees, thereby violating Section 8(a)(1) and (5) of the Act. The complaint also alleges that Respondent failed and refused to transfer or hire any of the former Newark bargaining unit employees because of their union membership, thereby violating Section 8(a)(3) and (1) of the Act. In its answer, Respondent denies the com- mission of any unfair labor practices. A hearing was held before me in Newark, New Jersey, on October 31, November 1, and December 5 and 6, 1978, and in Fort Worth, Texas, on January 19, 1979. At the conclusion of the hearing, the parties were given leave to file briefs, which have been received from the General Counsel and Respondent. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent maintains its principal office and place of business in Minneapolis, Minnesota. It rents and leases cars and trucks at a number of facilities throughout the United States. At the time of the events at issue in this case, one of its facilities was located at 40 Lafayette Street in Newark, New Jersey, where it engaged in the renting and leasing of trucks. On February 26, 1978, it closed that facility and opened a new facility at Edison, New Jersey. These are the facilities involved in this pro- ceeding. In the course of its operations during 1977, a repre- sentative period, Respondent purchased goods and mate- rials valued in excess of $50,000, which were delivered directly to its Newark terminal from locations outside the State of New Jersey. I find that Respondent is an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE I ABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE AL.EGED UNFAIR I.ABOR PRACTICES A. The Facts 1. Respondent's Newark operations Respondent operated its truck renting and leasing fa- cility in Newark, referred to as the Newark or Lafayette Street terminal, for more than 10 years, having taken it over as an operating terminal from a predecessor em- ployer. At the time of the takeover, the garagemen and mechanics at the terminal were represented by the Union, and Respondent continued to recognize the Union as their representative. It entered into a series of collective-bargaining agreements with the Union, the most recent of which became effective March 8, 1976, and was to remain in effect through March 7, 1979. Respondent also operates car rental facilities at the Newark Airport and in Newark, and employees at those locations are also represented by the Union. Until the time of the events at issue in this proceeding, relations between Respondent and the Union had been harmoni- ous, and there had been no strikes at any of the loca- tions. The Lafayette Street terminal was housed in leased premises, where Respondent employed a city manager, salesmen, office clericals, garagemen, and mechanics. The nature of its business was twofold. Respondent leased trucks, principally over-the-road tractors, on a long term basis, and rented trucks, mostly smaller vans, on a daily basis. The leased trucks were generally kept at the premises of the lessees, but brought to the Lafayette Street terminal for fuel and service. The rental vehicles were kept at Lafayette Street. The Lafayette Street ter- minal presented some service problems because of the size of its garage doors and the size and location of its fuel tanks. 2. The decision to open a terminal at Edison Starting in 1975, Respondent began a search in north- ern New Jersey for alternative facilities. Its objectives were-to find a replacement for Lafayette Street and to find an additional location to serve as a satellite to the Newark terminal, and to expand Respondent's service area. In 1975, Respondent made an unsuccessful offer to purchase a facility in Carlstadt, New Jersey, 9 or 10 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miles north of the Lafayette Street terminal. After failing to locate any other possible facility in northern New Jersey, in 1976 Respondent broadened its search, and looked in the area southwest of Newark near Brunswick, while continuing to look in Newark for an alternative lo- cation to Lafayette Street Terminal. I Sometime in the spring of 1977, John Manning, then Newark city manager, located a site in Edison, New Jersey, about 20 miles southwest of Newark for a possi- ble satellite operation. In June 1977, Manning met with Thomas Lavery, vice president and general manager of the truck division, and Cecil Davis, director of truck op- erations, at Respondent's Minneapolis office to discuss the Edison facility. In their discussion they agreed that the Edison facility should be operated as a satellite of the Newark terminal with one city manager and one office manager, located in Newark, for both facilities. In the light of a companywide management objective to elimi- nate gasoline powered vehicles and to concentrate on diesel-powered over-the-road trucks, they noted advan- tages in the Edison location because of its proximity to a major highway making it suitable for use as a fuel stop and an over-the-road repair shop as well as a local facili- ty to serve nearby industrial customers and expand Re- spondent's market area. They also planned to have ac- counts of present customers, who were located near Edison, transferred to Edison from Newark for service. A suggestion by Manning that they plan to interchange work between the two terminals based on workloads was rejected. In the discussion they agreed that three nonbar- gaining unit employees should be transferred from Newark to Edison to serve as rental manager, secretary, and salesman. However, when Manning suggested that three garage employees should also be transferred from Newark to the Edison facility, the suggestion was reject- ed, and Lavery told Manning that Respondent wanted the Edison facility to be nonunion, and that he had it straight from Respondent's president that there would not be a union at Edison. Manning observed that the union rate in Newark was not fair, but that it was a pretty good union; that it was easy to deal with; that he felt that a union shop was normal in the area; and that he was afraid he would get someone like the Machinists in the shop at a higher cost. Lavery replied that he did not care how much more he had to pay, and that he would pay $9 or $10 an hour for good people. 2 I These findings are based on the testimony of Thomas Lavery, vice president and general manager of Respondent's truck division, and Wil- liam Zucco, its real estate attorney. 2 Manning so testified. Lavery and and Davis denied that Lavery said that Respondent's president had instructed him to open a nonunion facili- ty in Edison. While both agreed that Manning had suggested the transfer of mechanics and garagemen from Newark to Edison, they testified that Lavery rejected the suggestion on the ground that they had all the work that they could handle in Newark and would not have to lay any person- nel off at Newark. I have credited Manning and not Lavery or Davis. While Manning left Respondent's employ involuntarily, and was a com- petitor at the time of the hearing, whose interests may be adverse to Re- spondent's, there is corroboration of Manning's testimony in that of Rozich, who testified that Manning had told him about the same time that Edison would be staffed by nonunion garage help. Manning clearly was not the originator of that plan, as all agreed that in Minneapolis he proposed the transfer of bargaining unit employees from Newark, and what he told Rozich corroborates his testimony that he was told in Min- neapolis that Edison would be nonunion. In addition, the reason which At this meeting, there was also discussion of curtailing the solicitation of new lease business north of Newark which could not be conveniently serviced out of Newark, and following the meeting Lavery instructed Respondent's marketing and sales force to cease such so- licitation, and to make additional efforts to solicit addi- tional business in the vicinity of Edison in the hope of expanding Respondent's market area, south of Newark.3 Although Respondent began to negotiate for a lease on the Edison property in the spring of 1977, Respondent's possession of the premises was delayed because of the need to obtain a zoning variance before Respondent could use the facility. A lease was executed in late August calling for occupancy on December 1, but the variance was not obtained until late November, and Re- spondent deferred its plans to use the facility until after a 60-day appeal period expired. As no appeal was filed, the Edison premises finally became available for occupancy at the end of January 1978. 3. The decision to sell the Newark accounts In November 1977, while Respondent was waiting for the Edison premises to become available, Jack Kirk, a former city manager for Respondent at Lafayette Street, called Gray, Respondent's director of sales and market- ing. He told Gray that he was with another truck leasing company in the area, and that he would be interested in the purchase of any accounts Respondent did not want in the Newark area. Kirk said that he was aware that Respondent had made a marketing decision to concen- trate on over-the-road diesel business, and that he was in- terested in gasoline straight truck business. Gray reported Kirk's call to Lavery who said that he would think about it. Shortly thereafter, when Lavery saw Respondent's statement for October showing losses in Newark for that month as in previous months, Lavery suggested that Gray ascertain whether Kirk was interest- ed in taking over all the accounts at the Newark termi- nal. As a result, Gray contacted Kirk and met with him in December. Toward the end of December Lavery asked Respondent's director of special projects, Ed Matheson, to replace Gray in the negotiations with Kirk. In December, Lavery informed Cecil Davis, Respond- ent's director of operations about Kirk's inquiry, and asked his opinion concerning the wisdom of continuing Lavery and Davis testified that Lavery gave for rejecting Manning's pro- posal does not withstand scrutiny, for the transfer of some accounts to Edison would leave Newark with less work than before, and until new accounts were obtained, the workload in Newark would drop, leaving Newark overmanned. Finally, Davis' testimony as to the June meeting and in general was often hesitant and stated in hypothetical terms, leav- ing doubt that he disclosed the discussion as it occurred. I Manning testified, contrary to Lavery and Davis, that Lavery's in- struction,was to restrict solicitation of new business to the area south of L.inden, New Jersey, which is 7 or 8 miles south of Newark. However, C. Edward Gray, Respondent's director of sales and marketing, as well as Lavery and Davis, testified that he received no such instruction, and that the only limitation on solicitation of new business in northern New Jersey was that it be confined to customers who could be conveniently serviced at the Newark facility. In view of the fact that all the evidence otherwise points to the fact that as of June Respondent planned to con- tinue operating a Newark terminal with Edison as a satellite, I do not credit Manning's testimony as to the limitation on the solicitation of new business. 168 NATIONAL CAR RENTAL SYSTEM, INC. to operate the Newark facility. Davis advised considera- tion of the sale from both an economic and an operation- al point of view because the Newark operation had con- sistently lost money over a period of time, had limited space, and needed improvements which had been bud- geted. 4 At around the same time, Lavery held up a project to install new fuel tanks and a service island at the La- fayette Street terminal to facilitate fueling of vehicles there. 5 Matheson negotiated with Kirk, and by late January 1978, Kirk made an offer to purchase a portion of the Newark accounts. Respondent rejected the offer as unsa- tisfactory because it did not include all the accounts Re- spondent had intended to keep at Lafayette Street after the Edison terminal opened." In mid-January, a representative of another trucking company approached Matheson about the Newark ac- counts but that inquiry apparently led nowhere. On January 12, while Matheson was still exploring the possibility of an agreement with Kirk, John Manning, who had resigned as Newark city manager in November, called Matheson on behalf of yet a third potential pur- chaser to ask whether Respondent had any accounts for sale at Newark.7 Manning subsequently informed Mathe- son that he was working for a group which was planning to start a truck leasing operation in Newark under the name of Champion and was interested in purchasing all of Respondent's Newark accounts. Matheson negotiated with Manning for the sale of all the Newark vehicles and accounts except those Respondent wished to transfer to Edison, and in due course on February 17, 1978, Man- ning presented Matheson with a draft purchase agree- ' According to Davis, Respondent's operating statements for Newark showed a profit of $90,000 in 1974, which he considered suspect because of known internal regional problems at the time, a loss of $33,000 in 1975, a loss of $72000 in 1976, and a loss of $110,000 in 1977. According to Davis, despite the losses, Respondent had no desire to shut down the Newark terminal independent of the possible sale of accounts, and through February 1978, Respondent continued to project that it would operate at both Newark and Edison until a firm agreement was reached for the sale of the Newark accounts. Davis testified that it was important for Respondent to maintain a position in New Jersey, even with losses, in order to remain competitive with other truck leasing and rental compa- nies. Matheson also testified that he believed that if he failed to negotiate the sale of the Newark leases, Lafayette Street would continue to operate with Edison as its satellite. 5 A budget for these improvements had been approved by Respond- ent's management in June at the same time that it approved a budget for operations at Edison. On November 11, 1977, Davis recommended ac- cepting a contractor's bid of $10,700 for the project and sought l.avery's approval to proceed. However, Lavery did not give his approval and in early December put a hold on the project. Although Respondent's Real Estate Attorney, Zucco, testified that efforts to find an alternate location for Lafayette Street continued after Edison was leased, he also testified that his last correspondence on that subject was in October or November 1977, and that these efforts evidently ended before Davis recommended going ahead with the improvements at Lafayette Street. 6 This occurred after Matheson took over the negotiations Gray gave him a list of leases and equipment of customers which Respondent wanted included in any sale. The list excluded the leases then being serv- iced out of Newark, which Gray told Matheson were to be transferred to Edison for service sometime in the future. 7 Other than the coincidence that there were three inquiries withil a short period of time and weak hearsay testimony by Manning, there is no evidence that Respondent sought out potential purchasers, and Respopd- ent's witnesses testified that the inquiries were initiated by the potential purchasers. ment, signed by Champion. Matheson brought the pro- posed agreement to Lavery in Minneapolis with the rec- ommendation that Respondent agree to the sale of the trucks and leases covered by the proposal. 8 Within I week after Matheson brought the draft contract to Min- neapolis, Respondent's representatives signed it.9 Under the agreement, Respondent sold Champion Na- tional's interest in 22 truck leasing service agreements and 41 trucks. Respondent agreed not to engage in truck rental and leasing business within the State of New Jersey with the accounts covered by the agreement, and to terminate or reassign all of its employees at the Newark facility effective as of the closing of the agree- ment. Champion agreed to enter into a sublease with Re- spondent for the Lafayette Street premises to extend from the date of the closing, March 6 until May 31, 1978. 4. Champion's offers of employment to some of Respondent's employees In January during the negotiations for the sale of the Newark account, Manning told Matheson that if the ne- gotiations were successful he would want to talk to Re- spondent's employees about their availability to work for Champion. Matheson conveyed this information to Di- rector of Operations Davis. Thereafter, from late Janu- ary through mid-February, Manning approached some of the mechanics, including Clifton Beard and Jesus Bonilla, and inquired about their interest in working for Champi- on.to Beard told Manning that he would work for Champion, but Bonilla made no commitment until Re- spondent actually shut down the Newark operation. The evidence does not show whether any other employees made commitments to Champion before February 26. On at least two occasions in February, one just before Champion made its contract proposal, Manning came to Lafayette Street and spoke to employees about working for Champion. These visits upset then City Manager Monusky who believed that they were bad for employee morale. When Matheson expressed Monusky's view to Manning, he replied that he knew that Champion was about to make an offer for all the accounts Respondent wanted to sell, that he saw no reason why he could not talk to the people, that he had hired some of them, and that the employees were already aware that something was happening. s Matheson testified that he did not feel that he had a firm deal until he received Champion's written proposal on February 17. Lavery testified that he had doubts until the last minute that an agreement would be reached to sell the Newark accounts. However, Director of Operations Davis testified that by late January or early February he concluded that a sale was likely because there were several bidders, and the only ques- lion was which deal Respondent was going to take. 9 The exact date on which the contract was signed was not established. It is dated February 17, 1978. Whenever it was signed, agreement must have been reached by the time Respondent began its preparations to close the Newark terminal as set forth below. "' At the time f the initial inquiry, Champion anticipated operatling at a different locaton. 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The transition from Respondent to Champion at Lafayette Street and the preparations to open the Edison terminal Even before the agreement between Respondent and Champion was final, by letters dated February 16, 1978, and signed by City Manager Monusky, Respondent noti- fied its customers of impending changes. Those custom- ers whose leases were assigned to Champion under the agreement were advised of the assignment of their leases, of the identity of Champion and its personnel, of Cham- pion's assumption of the Lafayette Street terminal, and of the relocation of Monusky's office to Edison, New Jersey, all to be effective February 26, 1978. Those cus- tomers whose leases remained with Respondent were ad- vised that Respondent would be vacating the Lafayette Street terminal effective February 26, 1978, and that their equipment would be serviced at Edison after that date. Immediately after the letters were sent, Matheson and a representative of Champion visited the customers whose accounts had been sold to Champion. Of the 22 lease customers covered by the agreement, several initial- ly refused to accept the assignment of Champion, and were therefore retained by Respondent, at least tempo- rarily. Several weeks before February 26, Respondent's man- agement decided to open the Edison facility Monday, February 2 7.11 Apparently, the close of Respondent's Lafayette Street terminal was timed to coincide with the opening of Edison so that there would be no gap in Re- spondent's operations. In early February, the task of finding qualified me- chanics to work at Edison was delegated to Respond- ent's regional maintenance representative. In late February he went to Newark, where he inter- viewed applicants to work at Edison as working foreman and mechanics. 2 Three or 4 days before February 26 Davis told City Manager Monusky that he, Rental Manager Kunkle, Sec- retary Karen Plowcha, and Lease Salesman Jim White would be transferred to Edison, and that Monusky was to terminate all the maintenance and garage employees and the remaining clerical employees effective February 25.'3 Davis told Monusky to consult Respondent's vice president of personnel and labor relations Sanville for further instructions as to what to tell the employees. Monusky then called Sanville, who was located in Min- neapolis, told him that the terminal was to be shut down the following weekend, and asked Sanville what he should tell employees. Sanville had no prior knowledge ' Davis so testified but the precise date of this decision was not estab- lished 2 Matheson testified that he met the regional maintenance representa- tive while in Newark in late February. He was not precise as to the time However, applications from prospective mechanics were dated January 26 and February 8. 22, and 25, indicating that the regional maintenance representative was in Newark for interviews during the last week of Feb- ruary 13 According to Davis, when he instructed Monusky to terminate the maintenance and garage employees he understood that Champion was going to hire all of them There is no evidence, however, that this under- standing came from any source other than his conversations with Malhe- son during the negotiations with Champion of the changes at Newark, except for one casual state- ment to him by Matheson about a month earlier that Re- spondent was thinking of selling the Lafayette Street ac- counts. Sanville advised Monusky to call the employees into his office, to explain the situation to them, and to give them letters advising them of their layoff so as to facili- tate their filing for unemployment compensation. Sanville said nothing with respect to the possibility of transfers to Edison for the employees who were to be discharged. Monusky asked if he should call the Union, and Sanville replied that he would call the union president. On Thursday, February 23, Monusky called the ga- ragemen and mechanics together and gave them their checks and a letter stating that they were terminated as of the end of that week. Monusky told them that the ter- minal was moving to Edison and that it would no longer employ any of them there. Some of them asked about the possibility of working at the Edison facility, and Mon- usky told them that unfortunately there was nothing he could do for them, that it was out of his hands, and that as of February 25 they would be terminated. 4 The body of letters which Monusky handed the employees stated: In accordance with our conversation on February 22, 1978, you are terminated as of February 25, 1978. This termination is based on the fact that National Car Rental System, Inc. is closing their truck facili- ty effective February 26, 1978. There were 13 employees in the bargaining unit who were laid off. In addition, two clericals and a rental salesman who were not represented by any union were laid off when the terminal closed. Respondent's Lafayette Street terminal terminated as of the close of business on February 25. Over the week- end Respondent moved its shop out of the Lafayette Street terminal, and on Monday February 27, Champion began its operations at that terminal. Four of Respond- ent's former mechanics started to work for Champion on that date. Two more of Respondent's former mechanics joined Champion the following June. 6. The opening of the Edison terminal On Monday, February 27, Respondent opened the Edison terminal for business with Monusky as acting city manager, the three former Lafayette Street employees mentioned above, and three newly hired employees as maintenance and garage personnel. 1 The nature of Respondent's business at Edison was the same as it had been in Newark. Respondent leased and rented trucks and provided the same maintenance serv- ices as it had in Newark. The transferred employees' duties were unchanged, and the maintenance and garage 14 MonIusky so testified Heard testified to a slightly different version I have relied on Molusky's version as his recollection generally appeared better than that of Beard "' Of those who were transferred from Newark to Edison, Kunkle was lerminate(l 1o May 17, Plowcha o(n October 27. and Monusky on March 20, 1978 An additional mechlanic wlas hired i (October 1978 170 NATIONAL CAR RENTAL SYSTEM, INC. employees performed the same work as their counter- parts formerly performed at Newark. At the outset the Edison terminal retained seven of its former Newark lease accounts and had no other lease ac- counts. 6 One of them, Saffer Simon, was serviced by Champion at Newark on behalf of Respondent. The maintenance and service of approximately 20 vehicles covered by the other 6 leases was transferred from La- fayette Street to Edison. In the period from late April through July, Saffer Simon and three more of the trans- ferred leases were sold to Champion, and returned to La- fayette Street. Thereafter, the Edison terminal retained three of the original Lafayette Street lease accounts, each located in or near Edison.'7 All 13 of the rental trucks at Lafayette Street were transferred to Edison on February 26, and a number of vehicles which were for sale and carried on Respondent's books as Newark prop- erty were transferred to the Edison terminal on the books, although they were physically located in Bridge- port, Connecticut, because the market for sales was better there. When Respondent planned to open Edison as a satel- lite of Newark, it budgeted funds to purchase new tools and shop equipment for Edison, and in late 1977 it pur- chased the equipment which it stored in a Georgia ware- house. However, when the Newark terminal closed, Re- spondent shipped all the tools and shop equipment, as well as some office furniture, from Newark to Edison, and it kept the newly purchased tools and equipment in its warehouse until needed at some other location. The only new equipment brought to Edison was an office trailer and a new air compressor. 7. Statements by supervisors concerning the move Until July 1977, David Rozich was a regional service manager for Respondent. In the course of his duties he visited the Newark terminal intermittently. Before his last visits to Newark in June, then City Manager Man- ning had located the Edison site and had told Newark terminal employees of Respondent's plans to open a ter- minal there. 8 When Rozich visited the terminal, em- ployees questioned him about moving to Edison and the impact of a move on them. Rozich had been told by Manning that Edison would be staffed by one top me- chanic and qualified diesel personnel, and that Edison would be nonunion. In discussing the matter with em- ployees, particularly Clifton Beard and Jesus Bonilla, Rozich discussed with them what Manning had told him, including the fact that the Edison facility would be non- union. In the course of Rozich's conversations with Beard, he offered to help Beard find a job in Dallas, where both of them came from, because Beard seemed to be unhappy at the prospect of the possibility of moving 16 Manning named seven accounts that were transferred, while Mon- usky named only six There was no evidence offered by Respondent to contradict Manning's identity of the seventh transferred account. 1 These three leases were with Roma Foodls, Marpal Toys, and Lami- nating Corp '" According to Clifton Beard, a former Newark mechanic. Manning originally told the employees that a portion of the operation would move to Edison but that when the Lafayette Street lease expired Respondent would more than likely move out of Newsark completely to a nonunion shop.' 9 Rozich also told Beard that Re- spondent was going to get new help at Edison because Respondent's management blamed the mechanics at Newark for losses and operating problems at the termi- nal, but that in his opinion the fault was in the way the terminal was run and not with the men. Rozich also said that Respondent figured it could get along better without the Union. 20 In early December, Director of Operations Davis talked to Newark Service Manager Raymond Fecher about the opening of the Edison facility. Davis told Fecher that Newark would be closed, that Respondent was going to move to Edison, that the shop in Edison would be nonunion, and that Fecher would be trans- ferred to Edison as service manager. 2' Shortly thereafter at a Christmas party, Fecher warned Beard and a few others that they would not have jobs at Edison because Respondent wanted to get away from the Union because it felt that the Union caused too much trouble. On the day of his termination in January, Fecher advised the garage employees to look for other jobs because Respondent was going to close the terminal. 8. Communications between Respondent and the Union concerning the closing of Newark and the opening of Edison Respondent gave no formal notice to the Union of its plans to sell the Newark accounts, to close the Newark terminal, or to open the facility at Edison before the end of February 1978. However, Union President Zingone heard rumors about the opening of an Edison facility from employees starting about 6 months before the move, and toward the beginning of 1978, employees told him that they had heard that Respondent's new facility would be nonunion. Zingone sought to reassure the em- ployees that Respondent was going to relocate in the Newark area and would not be nonunion because it had a union contract. However, he did not contact Respond- ent to ask about the truth of the rumors or Respondent's plans. In late December City Manager Monusky told Zin- gone that Respondent was contemplating a move, possi- 19 hese findings are based on a composite of the testimony of Beard, Bonilla. and Rozich Neither Beard nor Bonilla appeared to have a clear recollection of these conversations, and particularly of their timing Ho'sw- ever, although Rolich initially denied discussing the possible closing of the Nes ark facility with employees, his subsequent testimony makes it clear that he discussed that possibility as well as what he had heard about Edison being operated as a nonunion terminal Thus it is clear that even if the recollection of Beard and Bonilla may have been in error as to some details, it was accurate in material substance. 20 Beard and Bonilla so testified 2i Fecher so testified Davis, whom I have not credited as to the June meeting between him, Lavery, and Manning, contradicted Fecher only as to an immaterial aspect of this conversation and was not otherwise ques- tioned about it. Although echer was discharged by Davis after an argu- ment and clearly left with hard feelings, this testimony of Fecher is un- contradicted in its material respects and does not stand alone as the only expression of Respondent's intention to operate Edison nonunion I have credited Fecher. I find it unnecessary to decide whether, as Fecher also testified, around the tilne echer was fired Rozich also made derogatory remarks to him about the Newark employces and the Union, which Rotrich denied making 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bly to Edison. This was the first that Zingone was told about the move by any management source. Zingone did not discuss with Monusky whether the new location would be union or nonunion. Monusky did not say what would happen at Lafayette Street or to the employees there, and Zingone did not ask. On February 22, 1978, Respondent's vice president for personnel and labor relations Sanville telephoned Zin- gone to advise him that Respondent was going to open the Edison facility and close the Lafayette Street termi- nal. Sanville apologized for not being able to advise Zigone about the changes sooner, but said that he did not know about the earlier and therefore could not inform Zingone. Sanville said that he hoped that the closing would not have an adverse impact on the Union, and Zingone replied that the impact would be minimal as the Union was diversified. In the course of the conversa- tion Sanville told Zingone that all the bargaining unit employees at Lafayette Street would be terminated and paid whatever was due them. Zingone said little in re- sponse other than that he wanted to check on the legal- ity of the situation and would get back to him. There was no mention of bargaining in the conversation. On the next day, Zingone called Sanville and said that in his opinion Respondent's actions were illegal and that he would file unfair labor practice charges against Re- spondent. Sanville told him that it was his prerogative to do so and suggested that it might be best to have their respective lawyers tackle that problem. Zingone did not explain the basis of his opinion that Respondent's actions were illegal, and there was no mention of bargaining in their conversation. On that day Zingone visited the Lafayette Street ter- minal and asked Monusky what had been done. Monusky told him that Respondent was moving to Edison, that the men had been given notice of termination, and that they would receive whatever pay and benefits were coming to them. When Zingone protested the move, Monusky said that his hands were tied. They did not dis- cuss the possibility of transfer of the Newark employees to Edison. On the same day Zingone filed a charge against Re- spondent in Case 22-CA-8235 containing the same alle- gations as the charge in the instant case which was filed a month later. However, the former charge was not de- livered to Respondent, perhaps because it showed La- fayette Street as Respondent's address. B. Concluding Findings 1. The alleged refusal to bargain a. The contentions of the parties The General Counsel contends that Respondent was obligated to bargain over its decisions to sell a portion of its business at the Newark terminal and to relocate the remainder. The General Counsel contends further that Respondent was obligated to bargain over the effect of those decisions on Respondent's bargaining unit employ- ees. Respondent contends that it had no obligation to bargain over any of these matters for several reasons. It contends that the decision to sell the Newark lease ac- counts and close the Newark terminal went to the core of its entreprenurial control and was not a subject over which bargaining was required. Respondent contends further that under the terms of the collective-bargaining agreement the Union had waived bargaining with respect to all matters for the duration of the agreement and that by its conduct the Union waived bargaining over all the matters here at issue. b. The decision to sell the Newark accounts and close the Newark terminal The facts found above show that Respondent initially intended to continue operating at Newark with Edison as a satellite location. However, when potential buyers of the Newark lease accounts appeared on the scene, Re- spondent suspended its plans to upgrade the Newark ter- minal facilities, negotiated the sale of the Newark ac- counts and the sublease of the Lafayette Street terminal, and closed the Newark terminal. Although there is evidence discussed below that union considerations entered into Respondent's decisions with respect to the manning of the Edison terminal, there is no evidence that those considerations entered into the decision to sell the Newark accounts and close the Newark terminal. The evidence indicates that the idea of selling the accounts originated with the prospective pur- chasers and not with Respondent, and for some time after Respondent made its manning decision with respect to Edison until the inquiries were made about selling the Newark accounts, Respondent planned to continue the Newark operation. While Respondent was projecting a net profit for the combined Newark-Edison operation in its projected budget, it had experienced steady losses at Newark, and the Champion proposal to purchase the Newark accounts promised a more certain end to the Newark losses than the budget projection for the future of the combined facilities. In General Motors Corporation, GMC Truck & Coach Division, 191 NLRB 951 (1971),22 a majority of the Board held that a decision to close an existing facility which involves a "significant investment or withdrawal of capital" as to "affect the scope and ultimate direction of the enterprise" is essentially financial and managerial in nature and not of a kind which Congress intended to encompass within the meaning of "rates of pay, wages, hours of employment, or other conditions of employ- ment." 23 In General Motors, a buyer had purchased per- sonal property and equipment from the employer, had sublet the premises from the employer, and had entered into a franchise agreement for the sale of the employer's products. The Board found that the transaction was an arm's-length sale involving withdrawal of capital by the employer with a corresponding investment by the buyer and therefore that the employer was not obligated to bargain over the decision to sell with the employees' rep- resentative. 2 Enfd sub nom. International Union, United Automobile,. 4erospace and .Agricultural Implement Workers of America, UA H, and its Local 864 UAW v NL.R B.. 470 F.2d 422 (DC.Cir 1972) '1: 191 NIRBI at 952 172 NATIONAIL CAR RENTAL. SYSTEM, INC. More recently in Merryweather Optical Company, 240 NLRB 1213 (1979), a Board majority relied on the Gen- eral Motors rationale in finding that an employer was not obligated to bargain over a plant closing for economic reasons which resulted in the termination of the employ- er's existence as a business entity. Here the transaction is substantially the same as in General Motors. Respondent sold trucks and lease ac- counts, and sublet the Lafayette Street premises to Champion. There is no question that it was an arm's- length transaction which resulted in a withdrawal of cap- ital by Respondent with a corresponding investment by Champion; and that it affected the scope and direction of Respondent's New Jersey operations. I find that the deci- sion to sell the Newark accounts and, consequently, to close the Newark terminal is indistinguishable from the decision in General Motors and that Respondent therefore had no duty to bargain over it. 24 c. The decision to open the Edison terminal and move certain Newark accounts to it Assuming that Respondent's bargaining obligation in- cluded a duty to bargain over its decision to relocate a portion of the Newark operation in Edison, the question remains whether the Union waived its right to bargain over this decision. The evidence in this regard shows that for a period of several months before any representative of Respondent's management gave any notice to the Union of its plans with respect to Edison, Union President Zingone heard rumors from employees that an Edison terminal would be opened and operated as a nonunion facility. Zingone made no effort to ascertain their truth from Respondent. In late December 1977, Newark Acting City Manager Monusky told Zingone that Respondent was contemplat- ing a move from Newark, possibly to Edison. Zingone did not ask Monusky whether the new location would be union or nonunion, nor did he ask what would happen to the Lafayette Street employees. He made no request to bargain over the prospective move and took no action until 2 months later in February, when Sanville notified him that the move would take place in 4 days. While it appears that Sanville, the official who normal- ly dealt with the Union, gave no notice of Respondent's intentions until the move was imminent, by late Decem- ber Zingone had been informed by a reasonable manage- ment official that a move was being contemplated, and that information did not come in a vacuum. To be sure, Zingone had no obligation to request bargaining simply on the basis of shop rumors, but with those rumors as background, when Monusky informed Zingone of the prospective move, Zingone had all the notice he needed to conclude that if the Union wished to bargain over the prospective move the time was ripe to request bargain- 24 Cf. Royal Typewriter Company. a Division of Litton Business Systems, Inc. a Subsidiary of Litton Industries. Inc., and Litton Industries, Inc., 209 NLRB 1006, 1012 (1974); Brockway Motor Trucks. Division of Mack Trucks, Inc., 230 NLRB 1002 (1977), enforcement denied 582 F.2d 720 (3d Cir. 1978); L. E. Davis, d/b/a Holiday Inn of Benton, 237 NLRB 1042 (1978). To the extent that Young Motor Truck Service. Inc., 156 NLRB 661 (1966), is inconsistent with General Motorv, it appears to have been modified by that decision ing.25 I find in these circumstances that the Union had actual notice of Respondent's intention to move a por- tion of its business from Newark before the move became an accomplished fact; and that by failing to re- quest bargaining over the decision with due diligence after receiving such notice the Union waived its right to bargain over the decision.26 d. The effects of the decisions to close the Newark terminal and move a portion of its work to Edison Again assuming that Respondent had a duty to bargain over the effects of its decisions to close the Newark ter- minal and to relocate a portion of its operation in Edison, the question remains whether the Union waived its right to bargain over the effects. As found above, Zingone had actual notice in late De- cember that Respondent was contemplating a move from Newark, but made no request to bargain over the deci- sion or its effects at that time. On February 22, Sanville gave Zingone notice that in 4 days the Newark terminal would close, the Newark employees would be terminat- ed, and the Edison terminal would be opened. Zingone made no request to bargain at that time. On the follow- ing day, Zingone called Sanville to say that in his opin- ion Respondent's actions were illegal and that he intend- ed to file unfair labor practice charges, but he was not specific as to the nature of the claimed illegality and he again made no request to bargain. Although on the same day Zingone filed a charge alleging a refusal to bargain, that charge was never received by Respondent, and it was not until a month later that Respondent learned that the Union charged it with a refusal to bargain. The information Monusky gave Zingone in December, while containing no mention of the sale of a portion of the Newark operation, nonetheless put Zingone on notice that changes were under consideration which would affect the entire bargaining unit, and a request to bargain over effects as well as the decision to relocate would have been appropriate at that time. Moreover, Sanville's February 22 notice to the Union was not too late to provide an opportunity for bargaining over the ef- fects of the decision to sell most of the Newark oper- ations and relocate the remainder. Even then Zingone only protested that Respondent's actions were illegal and made no request to bargain.27 I find that Zingone's fail- ure to request bargaining with respect to the effects of Respondent's proposed relocation in December or its an- nounced decisions in February resulted in a waiver of the Union's right to bargain over the effects of the deci- sions to close the Newark terminal and relocate a portion of its operations in Edison. For the reasons set forth above, I find that the General Counsel has failed to sustain the refusal to bargain allega- tions of the complaint, and that it is unnecessary to con- sider Respondent's other contentions in defense of these allegations. a Meharry Medical College, 236 NLRB 1396 (1978) ae Meharry Medical College. supra. International Offset Corp, 210 NLRB 854 (1974) 27 Sec Clarkyod Corporation, 233 NlRB 1172 1977) 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The alleged discrimination The General Counsel contends that Respondent violat- ed Section 8(a)(3) and (1) of the Act by terminating the Newark garage employees and failing to consider them for transfer to the Edison terminal. Respondent contends that it had no antiunion animus, that its decisions with respect to opening and staffing the Edison facility were made before any decision to close the Newark facility, and that its decisions were based entirely on valid busi- ness considerations. At the outset it may be observed that the General Counsel does not contend that the decisions to open the Edison terminal or to transfer certain Newark accounts to it were motivated by antiunion considerations. The General Counsel contends only that the decision to staff the garage at Edison entirely with new employees and not to offer Newark employees the opportunity to trans- fer there were discriminatorily motivated. Going to the heart of the General Counsel's conten- tion is the evidence with respect to the June 1977 meet- ing between Manning, Lavery, and Davis in Indianapo- lis. As indicated above, I have credited Manning's ver- sion of what was said at that meeting about the manning of the garage. The statements made at that meeting do not stand alone as the only expression of Respondent's intent to operate Edison nonunion, for Fecher's testimo- ny was uncontradicted that Davis expressed that intent to him in December. The statements made by Lavery in June take on added weight because they were made in direct response to Manning's proposal to transfer three Newark garage employees to Edison. Respondent contends that no animus can be found in this case because its relations with the Union before Feb- ruary 26 were harmonious, and there is no other evi- dence of antiunion hostility on the part of the employer. However, the record of past relations, while significant, cannot overcome the specific evidence of animus, par- ticularly in the light of the discussion below. Apart from the direct evidence of Respondent's an- tiunion motivation for not transferring employees from the Newark bargaining unit to Edison, there is other evi- dence to show that the reasons advanced by Respondent for not offering Newark employees the opportunity to transfer to Edison were not valid. Respondent points out that the decision to staff Edison with new employees was made before the decision was made to close Newark, presumably to support the testimony of Lavery and Davis that the reason for rejecting Manning's pro- posal to transfer Newark employees was based on the belief that there would continue to be ample work for the garage employees at Newark. However, in the light of plans to transfer at least three lease accounts from Newark to Edison, it is difficult to understand Lavery's claimed belief in June that all Newark employees would be kept busy after the transfer. Whatever validity that reason for rejecting Manning's proposal may have had in June, by February, when Respondent hired the Edison employees, the facts had radically changed. By February 17, before Matheson saw the regional service manager at Newark interviewing applicants and before some of the applications were received, Respondent knew that none of its Newark garage employees would be needed by it after Edison opened, and indeed the future prospects for the Newark employees had substantially changed by the time Matheson was assigned to negotiate the sale of the Newark accounts. There is testimony that mechanics were in short supply, yet at no time was any considera- tion given to the transfer of any of the Newark garage employees. Respondent contends that it believed Champion would hire all the Newark garage employees. But that belief was based solely on a report by Matheson to Lavery. Respondent did not attempt to learn to what extent Champion had offered employment to bargaining unit employees, and there was no agreement between Re- spondent and Champion that Champion would hire all the garage employees. The terms of the agreement Re- spondent signed with Champion provided only that Re- spondent would either terminate or reassign its employ- ees. In any event, whatever Respondent's belief as to Champion's intentions, its employees were not obligated to go with Champion, and Respondent's failure in the circumstances to even ask whether any of its employees would prefer a transfer to Edison is another indication that it had a predisposition not to consider any of them for employment at Edison, whether or not available. While there is some testimony relating Respondent's desire to operate Edison nonunion to concern over the quality of the work of the Newark employees, no effort was made to distinguish between the Newark employees based on their abilities or to compare them to the appli- cants hired to work at Edison. The decision to terminate the Newark employees was made in Minneapolis and handed down to local management without discussion of any employee's merits with local management. All were excluded from consideration, including Clifton Beard, of whom Rozich had such regard that he offered to assist Beard to obtain other employment with Respondent or a competitor in Dallas. Even when Respondent experi- enced turnover among the Edison employees after Feb- ruary 28, it gave no consideration to its former Newark employees for employment. Most telling, in their June conversation with Manning neither Lavery nor Davis advanced any alleged shortcomings of the Newark em- ployees as a reason for not offering them the opportunity to transfer, even under their versions of that conversa- tion. I find in all the circumstances that Respondent system- atically excluded the Newark garage employees for con- sideration for employment at Edison because of the desire voiced within ranks of management to have a non- union operation at Edison and that such systematic ex- clusion constitutes discrimination within the meaning of Section 8(a)(3) and (1) of the Act. 28 IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- 2s Alexander Dawson. Inc. d/b/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977). 174 NATIONAL CAR RENTAL SYSTEM, INC. tain affirmative action set forth below to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- criminated against Clifton Beard, Jesus Bonilla, Robert Carter, Otis Joyner, Hollowell McLeod, Edward Mat- thews, Stanley Mayo, Vincent Mills, Joseph Prophete, Jesus Rivera, Henry Robinson, Robert Watson, and Richard Wojciechowski with respect to employment at its Edison terminal, it will be recommended that Re- spondent be required to offer them employment in the same jobs for which they would have been hired absent the discrimination against them, or if such jobs no longer exist, in substantially equivalent jobs. In the event that a sufficient number of jobs have not become available since the Edison terminal opened, it will be further rec- ommended that Respondent be required to place their names on a preferential hiring list and offer them the first jobs that become available in which they would have been employed absent discriminatory considerations. It will further be recommended that Respondent be re- quired to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to each of them of the amounts they would have earned if Respondent had given them nondiscriminatory consideration for employment, less net earnings to which shall be added interest to be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).29 29 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW I. National Car Rental System, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union 723, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to consider its Newark terminal employ- ees for employment at its Edison terminal because of their representation by the above-named Union, thereby discriminating in regard to the hire of Clifton Beard, Jesus Bonilla, Robert Carter, Otis Joyner, Hollowell McLeod, Edward Matthews, Stanley Mayo, Vincent Mills, Joseph Prophete, Jesus Rivera, Henry Robinson, Robert Watson, and Richard Wojciechowski and dis- couraging membership in the Union, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The General Counsel has failed to establish that Re- spondent unlawfully refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. [Recommended Order omitted from publication.] 175